Thursday, October 09, 2008

Walgreen Seeks District Court Review of TTAB's "WAL-VERT" Decision

Walgreen has filed a complaint (here) in the United States District Court for the Northern District of Illinois, seeking de novo review (under 15 U.S.C. Sec. 1071(b)) of the TTAB's August 5, 2008 decision in Wyeth v. Walgreen Co., Opposition No. 91165912 (August 5, 2008) [not precedential].[TTABlogged here]. [HT: Pharmalot blog].

A divided TTAB panel sustained Wyeth's opposition to registration of the mark WAL-VERT for "antihistamines and allergy relief preparations," finding it likely to cause confusion with Opposer's registered mark ALAVERT for allergy relief and antihistamine preparations. Although Walgreen sells its WAL-VERT product only in its own stores, in packaging that bears the Walgreen house mark and displayed on store shelves next to the ALAVERT product, the panel majority was constrained to consider Walgreen's mark and goods as stated in its application, without any such real-life restrictions.

In dissent, Judge Drost stated his view that, comparing the marks in their entireties, the dissimilarities in their sound, appearance, meaning, and commercial impression outweigh the similarities. Moreover, he would give great significance to the lack of actual confusion because there was a "significant opportunity for confusion."

TTABlog comment: Many years ago, when I was a kid growing up in Chicago, we called it "Walgreen's." Was that just a youthful indiscretion on my part, or was the name changed to drop the apostrophe "s"?

PS: Readers tell me that Walgreen uses the name Walgreens on its stores, without the apostrophe. I guess I could have looked, since I live about one block from a Walgreen(s). Apparently, I don't pay that much attention to trademarks.

Text Copyright John L. Welch 2008.


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